the State has not only not demonstrated that the Commission committed an error that affected its
right of defense before the Commission, but also that the inclusion of those events is proper since
they have been ruled supervening. The Court, therefore, rejects the preliminary objection.
B. Preliminary objection on the alleged failure to exhaust domestic remedies
b.1 Arguments of the State and observations of the Commission and of the
representatives
20. The State put forward two arguments relating to this preliminary objection. The first, regarding
the “2,317” original beneficiaries’ subsequent claim of “fringe benefits” and “other calculations” 17 as
indicated in the Expert Report, that it is “an issue that has not yet been resolved by the domestic
jurisdiction” where, moreover, there is “a precautionary measure issued by the judiciary that
suspends its effects.” The State added that there has not been an unjustified delay that would be an
exception to the rule of the exhaustion of domestic remedies since the Expert Report was issued on
December 3, 2015, adopted on July 1, 2016 and confirmed on March 16, 2017, although the legality
of the confirmation is now being “questioned by the State.”
21. Secondly, it indicated that, in relation to this same controversy on a subsequent claim made
by “2,317” beneficiaries, the process of executing the decision was not an appropriate channel for
such claim, but rather the proper manner was through a labor channel that is designed for the
payment of social benefits and other work-related rights, such as that of receiving fringe benefits. It
specified that the procedure for enforcement lacks an evidentiary stage and, therefore, is “not an
appropriate and effective channel” to formulate these claims.
22. The representatives Valdivia Ayala, Guerrero Cassuso, Rossi Mérida and Valdivia
Bocanegra pointed out that it is the State itself that has been filing different remedies and claims
“with the clear motive to delay and to not comply with its obligation.”
23. The representative Meneses Huayra argued that the determination in the Expert Report
was final since it had been adopted and confirmed on appeal. She also indicated that the
precautionary measure referred to by the State had been “lifted judicially.”
24. The Commission indicated that this preliminary objection concerned supervening events and
that the victims should not be “required to exhaust domestic remedies for each supervening event.”
It stressed, moreover, that the State did not invoke this objection at the proper procedural moment,
which was when it became aware of the representatives’ brief that contained additional observations
on the merits.
b.2 Considerations of the Court
25. Pursuant to Article 46(1) of the Convention, in order to admit a petition or a communication
lodged with the Commission under Articles 44 or 45 of the Convention, it is necessary that “the
remedies under domestic law have been pursued and exhausted in accordance with generally
recognized principles of international law.” 18 However, the remedies must not only formally exist, but
17
That is: compensation for time of service, bonuses of July and December, the payment of 30% for years of service,
schooling, vacation pay for 90 and 91, May 1 holiday pay and educational allowance.
18
C. Case of Velásquez Rodríguez v. Honduras. Preliminary Objections, supra, para. 85 and Case of Teachers of Chañaral
and other municipalities v. Chile. Preliminary Objection, Merits, Reparations and Costs. Judgment of November 10, 2021.
Series C No. 443, para. 24.
8